CODE OF CIVIL PROCEDURE, 1908

C.p.c- sec: 01 & 02

Section 1. Short title, commencement and extent — (1) This Act may be cited as the Code of Civil Procedure, 1908. (2) It shall come into force on the first day of January, 1909. (3) It extends to the whole of Bangladesh.

ধারা ১। সংক্ষিপ্ত শিরোনাম, প্রারম্ভ ও কাযকািরতার সীমাঃ
(ক) এই আইন ১৯০৮ সনের দেওয়ানী কার্যবিধি নামে পরিচিত হবে।
(খ) ইহা ১৯০৯ সালের ১ জানুয়ারী হইেত কায কর হইবে।
(গ) ইহা সমগ্র বাংলােদেশ কায কর হইেব।

2. Definitions

In this Act, unless there is anything repugnant in the subject or context,-

(1) “Code” includes rules:

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within  section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:

(3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made:

(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of the High Court Division:

(5) “foreign Court” means a Court situate beyond the limits of Bangladesh which has no authority in Bangladesh and is not established or continued by the Government:

(6) “foreign judgment” means the judgment of a foreign Court:

(7) “Government Pleader” includes any officer appointed by the Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader:

(8) “Judge” means the presiding officer of a Civil Court:

(9) “Judgment” means the statement given by the Judge of the grounds of a decree or order:

(10) “Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made:

(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:

(12) “mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession:

(13) “movable property” includes growing crops:

(14) “order” means the formal expression of any decision of a Civil Court which is not a decree:

(15) “pleader” means any person entitled to appear and plead for another in Court :

(16) “prescribed” means prescribed by rules:

(17) “public officer” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of the Civil Service of 4[ The Republic];

(c) every commissioned or gazetted officer in the military, naval or air forces of Bangladesh while in the service of the 5[ Republic];

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interest of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the 6[ Republic], or remunerated by fees or commission for the performance of any public duty:

(18) “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125:

(19) “share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds: and

(20) “signed”, save in the case of a judgment or decree, includes stamped.

Section 2—“District”, “District Court” & ‘Judge’, In section 2 of the Code of Civil Procedure, ‘District”, “District Court”, ‘Judge’ are defined as follows:

“District” means the limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court” and includes the local limits of the ordinary original civil jurisdiction of the High Court Division).
“Judge” is defined in the following language: “Judge” means the presiding officer of a Civil Court” AKM Ruhul Arvin vs District Judge 38 DLR (AD) 172.

Sections 2(A), 3, 15, 24, 38, 39 and 44A(1)—Under section 18 of the Act the jurisdiction of a District Judge or Subordinate Judge extends (subject to the provision of section 15 of Code) to all original suits cognisable by Civil Courts. Sonali Bank vs Abidur Rahman 42 DLR 311.

Sections 2(2)—Decree passed on the basis of adverse possession Though no issue was framed on the vital question of adverse possession—Decree is illegal. Niroponia Ritchel vs Mohammad Abdul laid Miah 41 DLR 467.

Sections 2(2)—Decree in a Partition suit—Necessary parties not impleaded—No Court will pass such infructuous decree as it will run into jeopardy being not binding upon them. C Juri Talukder vs C Magni 40 DLR 532.

Section 2(2)—Whenever executing court finds any difficulty to understand the decree it can look to the relevant judgment which gave rise to the decree for clarification and appreciating the decree properly. Abdul Jalil Mollah vs Sree Mati Dasi and others 47 DLR 240.

Section 2(2)—After passing of the final decree in a partition suit it is effective between the admitted co-sharers and for the purpose of a pre¬emption proceeding where the transfer is made by a co-sharer to a stranger, this question of execution of the final decree between the co¬sharers is not relevant and necessary. Shafiuddin Chowdhury (Md) vs Aid Abdul Karim and others 52 DLR (AD) 41

Section 2(2) and 2(9)—Award given by an Arbitrator shall be deemed to be a decree and the statement of the grounds of such award to be a judgment within the meaning of section 2(2) and section 2(9) of the Code of Civil Procedure respectively. The Arbitrator shall have all the powers of Civil Court under section 36 of the Ordinance No. 2 of 1982. Begum Lutfunessa vs N Ahmed 40 DLR 232.

Section 2(2) and Order VII, rule 11 and Order XLIII—The suit having been found maintainable the plaint was not rejected—The impugned order though not appeal-able, appeal was wrongly filed against the impugned order. Ayezaddin Sheikh vs Abdul Karim Sheikh 42 DLR 154.

Sections 2(2), 47 and 151—An order dismissing an application made under section 47 CPC is not appealable and hence an application under section 151 would lie against such order—An order of dismissal for default not a decree. Sonaban Bibi vs Abu Miah 38 DLR 432.

Sections 2(2), 96 & Order IX rule 13—Appeal—Effect of its disposal ‘Appeal’ which has not been defined in the Code, is meant to be an application by an aggrieved party asking an Appellate Court to set aside, modify or revise a decision of a subordinate Court an ‘appeal’ even if irregular, incompetent or time-barred is nonetheless an appeal the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined. Abdul Mannan vs Jobeda 44 DLR (AD) 37.
Section 2(4) The Court of the District Judge is superior in grade to the Court of the Subordinate Judge—The Court of the Subordinate Judge cannot be the principal Civil Court of original jurisdiction of a District called the “District Court”. Sonali Bank vs Abidur Rahman 42 DLR 311.

Sections 2(4), 24 and 44A(1)—The word “District Court” as used in section 44(1) is primarily to be interpreted with reference to the definition of the District Court as given in section 2(4) of the Code—”District Court” referred to in section 44A(1) of the Code means the Court of the District Judge under section 3(1) of the Civil Courts Act and no other Court. Sonali Bank vs Abidur Rahman 42 DLR 311.

Sections 2(9)—Order of dismissal of a suit for default cannot be called a judgment or order contemplated by the Code. Sonali Bank vs Ald Al-Akram Modal) and others. 46 DLR 671.
Section 2(10—Definition of legal representative shall be given a wide meaning to include the heirs of the decreased tenant who died during the pendency of Execution Case. Kazal Das Surma vs Pradip Das 40 DLR 541.

Sections 2(11) and 50—The view expressed in CR No. 756 of 1981 that a fresh suit against the heirs of the deceased tenant for eviction did not receive any consideration of section 2(11) & section 50 of the Code of Civil Procedure & section 2(9) of PRC Ordinance (XX of 1963). Kazal Das Surma vs Pradip Das 40 DLR 541.

Section 2(12) & Order 20 rule 12—Order XX rule 12 of Civil Procedure Code is merely an enabling provision permitting the Court in a suit for possession to pass also on the plaintiffs prayer, if he so chooses, a decree for past and future mesne profits and this rule has no manner of application in a suit only for mesne profits. Hamiclul Hug Chowdhury vs Amino Khatoon and others 47 DLR 446.

Section 2(14), Order XXXIX rules 1, 2, 3, and Order XLIII r.1(r)—Show cause notice about injunction—Whether appeal lies against the relevant order The order cannot be termed an order of refusal of the plaintiffs prayer for temporary ad-interim injunction. An order must be a formai expression of the decision of the court but in the impugned order there is no such formal expression. It is an order simpliciter for notice upon the opposite party to show cause xvh: injunction should not be issued and, as such, it is no order under rules 1 & 2 but an order under rule 3 and it does not fall within the category of an appealable order. Bengal Water Ways Ltd vs BM 46 DLR 179.

Section 2, Order VII, rule 11—A decree passed by a Court of first instance is appealable and not resable-The instant civil revision is not maintainable. Abdur Rashid Salam vs Md Moniruzzaman (Civil) 58 DLR 294

 Sections 2(a), 3 & 9—Section 95 of the Com­panies Act providing no forum there under, any dispute arising thereto is to be resolved as a civil dispute resorting to the ordinary civil Court of competent jurisdiction and, as such, the inherent jurisdiction under the Companies Act in the absence of any specific provision therein would not be invoked to enforce the provision of section 95 of the Companies Act, as the said provision is providing procedural matters only and not substitutive provi­sion. Abdul Mohit vs Social Investment Bank Ltd (Civil) 61 DLR (AD) 82

C.p.c – sec: 03

Section 3.  Subordination of Courts :- For the purpose of this Code, the district court is subordinate to the High Court Division, and every Civil Court of a grade inferior to that of a District Court and every Court of small causes is subordinate to the High Court Division and District court.

Rulings:-

Section 3—Execution case Striking out execution case after repeal of section 47 CPC An objection by heirs of the deceased judgment-debtor cannot be entertained after repeal of section 47 C.P.C After the repeal of section 47 of the Code the limited jurisdiction vested in the executing court to decide the question of execution, discharge and satisfaction of the decree has been taken away to save the decree holder from the misery of facing unlimited number of objections against execution of the decree and thereby delaying the execution of the decree indefinitely. Impugned order is liable to be set aside and execution to be proceeded with in accordance with law. Tripura Modern Bank Ltd vs Sunil Kumar 43 DLR 460.

Sections 3 and 15—The acquisition proceedings are a colourable exercise of power as they were started without any agreement with the requiring body under section 15 of the Ordinance and for circumventing a valid decree of the Civil Court. Sankar Copal vs Addl Commissioner Dhaka 41 DLR 326.

C.p.c- sec: 04 and 06

4. Saving: (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special  law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a land-holder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

Rulings:

 Section 4—The Chittagong Hill Tracts Regulation, which is a special law and since there is specific bar, the procedures in Civil Procedure Code will not be applicable. Bangladesh Forest industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488

 Sections 4 and 9—Facts relating to the claim of Trade Union to enforce its right to contest election for Bargaining Agent having not brought the case within the definition of industrial dispute to confer jurisdiction on Labour Court, Civil Court will have jurisdiction in the matter. KPA4 Sramik Union vs Registrar of Trade Union 42 DLR 329.

 Sections 4 and 9-Provision in the special law is not affected by provision in the Code of Civil Procedure. Special law must prevail over other laws.

Under section 9 of the Code, the Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which the cognisance is either expressly or impliedly barred. Section 4 of the Code provides that in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special law now in force or special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. It appears from section 4 that the provision in the special law is not affected by the provision in the Code and that the provision in the special law must prevail in the absence of any specific provision to the contrary. Jalaluddin Ahmed vs Matiur Rahman Khan 41 DLR 77.

 Sections 4 and 9—The general remedy of the suit under section 9 of the Code will be impliedly barred where a right is created by a special law and special forum is provided in it.

 Sections 4 and 9— of the Code read together, therefore, indicate that where a right is created by a special law and a method of enforcing the right is pointed out by the law creating such right, the general remedy of suit under section 9 of the Code will be impliedly barred and the method provided by the special law trust be followed. Jalaluddin Ahmed vs Matiur Rahman Khan 41 DLR 77.

 Sections 4 & 9—The jurisdiction of the Civil Court is impliedly barred in respect of the trial of election disputes.

In matters governed by the said Ordinance and said Mules the jurisdiction of the Civil Court is impliedly barred. In creating the special forum that is, the Election Tribunal with exclusive jurisdiction to deal with election disputes, the intention of the Legislature seems to have been that defeated candidate who goes to the Election Tribunal impeaching the election would be in a position to agitate before the Tribunal in a properly framed election petition the pre-election controversies materially affecting the result of the election. Mustafa Kamal vs BD Habibullah 41 DLR 197.

 Sections 4 & 9—When administrative authority or statutory tribunal is vested with jurisdiction to decide a matter on consideration of materials placed before it, such authority can either accept the materials or reject the same. The trial Court acted illegally in passim the impugned decree holding that the order of the Collector of Customs was ultra virus and without jurisdiction. Bangladesh & another vs Bamtrashi Lai Sharaf & ors. 45 DLR 669.

6.Pecuniary Jurisdiction:

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

Rulings:

Sections 6 and 115—Reading section 6 of the Code of Civil Procedure, sections 8 and 11 of the Suit Valuation Act and the relevant provisions of the Civil Courts Act the conclusion would follow that the value of the suit or proceeding would conclusively determine the forum where a suit or proceeding will be filed and tried and the appeal will be heard and disposed of. The forum of appeal is to be determined according to the value of the suit or proceeding and the value of appeal consequently will lead to the revisional forum and jurisdiction and
that would be the basis for determining revisional forum. AHM Khurshed Ali vs. Md Hashem Ali (Civil) 58 DLR 211

 

Sections 6 & 115(2) —The District Judge can exercise his power of revision under section 115(2) of the Code where his pecuniary jurisdiction in revisional matter is co-existent with that of his appellate jurisdiction. The District Judge cannot entertain an application under section 115(2) of the Code beyond its pecuniary jurisdiction which is fixed for appellate jurisdiction. Hamida Real Estate Construction Ltd vs Malika Hasina dahan (Lill) (Civil)59 DLR 470

 

Section 6—Since section 34 of the Ain has not made any synonymous provision like that of section 56 of the Code the Court can exercise its discretion on the same but in so doing there cannot be any gender  discrimination as the same would certainly go against the principle of the Constitution of the Republic. Kanika Begum vs Artha Rin Adalat (Spl Original) 64 DLR 276

 

C.p.c-sec: 09

9.Courts to try all civil suits unless barred: The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation.-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Rulings:

Section 9—Suits which a Court is barred to try —Under Under section 9 of the Code of Civil Procedure any Civil Court has jurisdiction, “to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred”. Nur Muhammad vs Mainuddin 39 DLR (AD) 1.

Section 9—Ouster of jurisdiction is not to be readily inferred. Habibur Rahman vs Election Commissioner 40 DLR 459.

Section 9—The suit building was included in the list published In the official Gazette in contravention of section 5(1)(a)(b) of the Ordinance and as such the Civil Court had jurisdiction to try the suit. The Court clearly fell into error in holding that because of inclusion of the building in the official Gazette the suit was not maintainable. Aid Zaher vs Bangladesh 42 DLR 430.

Section 9—Ouster of Court’s jurisdiction to try a suit—the ouster of Court’s jurisdiction is not to be readily inferred. Even when there is an express ouster, the court shall retain its jurisdiction if the order passed is without jurisdiction or malafide or not in accordance with law. Motiul Hoque vs DIT (RAJUK) 43 DLR 407.

Section 9—The suit falling within the exclusive jurisdiction of the Small Cause Courts Judge but erroneously tried by a court other than the SCC Judge suffers from no legal infirmity and the trial cannot be vitiated. Section 23 of the Small Cause Courts Act negatives the proposition that section 16 of the Act altogether deprives the civil Court of the jurisdiction conferred by section 9 of the Code in respect of the small causes suit. Wahida Rashid vs Miran Muhammad Zahidul Hoque 43 DLR 115.

Section 9—Decree by civil Court whether Court of Settlement is competent to disturb it—The decree is binding on the Government until it is set aside by a court of competent jurisdiction. A party to the suit cannot say that an agreement, which was the basis of the suit, was forged. The Court of Settlement has no power to set aside a decree of the civil Court but it has the jurisdiction only to decide the batter on the basis of papers produced and so the decree stands against the Government. Rahela Khatun vs Court of Settlement 45 DLR 5.

Section 9—Exclusion of jurisdiction of a civil Court should not be readily inferred, 1f the order passed or action taken by any authority is malafide, such court shall have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question. Soleman Bibi and ors. vs Administrator, Farajikandi Complex and ors. 45 DLR 727.

Section 9—Decision of the civil Court with regard to the nature of the property and also the plaintiffs claim thereto is not only binding upon the present petitioner but also upon the Court of Settlement. Moinuddin (Md) vs The People’s Republic of Bangladesh, represented by the Secretary Ministry c f Works 48 DLR (AD) 56.

Section 9—Even if jurisdiction is excluded still then the civil Courts have jurisdiction to examine as to whether the provisions of an Act have been duly complied with or to examine as to whether a statutory tribunal has acted in conformity with the fundamental principles of judicial procedure. Shahidullah (Md) vs Abdus Sobhan Talukder 49 DLR 248.

Section 9—The jurisdiction of the Court is conferred by law and it never depends upon the consent of the parties. It is thus evident that the Assistant Judge acted illegally and without jurisdiction in passing the impugned decree. Rokeya Begun? vs Aid Abdur Rahman alias Ganda being dead his heirs: 1(a) Md Abdul Barik and others 50 DLR 271.

Section 9—When alternative remedies are available to a party, it is open to him to prefer any one or more of his choice and he cannot be compelled to have recourse to a particular remedy. Narayanganj High School and others vs Pran Ballave Saha Banik and others 52 DLR 90.

Section 9—Since fraud has been alleged by the plaintiffs in auction of their suit land and they were not made parties in the auction proceedings, the party affected by auction sale can take shelter of the Civil Court. Parul Bala @ Parul Rani Shah Mondol vs Suru Miah and others 53 DLR 451.

Section 9—Under this section a person is entitled to institute a suit for possession when he was dispossessed of immovable property otherwise than in due course ()flaw. Shan Hosiery vs Bangladesh Jatiya Shamabaya Shilpa &Unity Ltd and others 54 DLR 291

Section 9—It cannot be the intention of the legislature that when an award was made in the name of wrong person, through collusion or otherwise, the rightful owner of such property will have no remedy under the general law to establish his title to the compensation as awarded. Animal Protection Society, Chittagong vs Laxman Chadra Das and ors 56 DLR 522.

Sections 9 & 4—When administrative authority or statutory tribunal is vested with jurisdiction to decide a matter on condideration of materials placed before it, such authority can either accept the materials or reject the same. The trial Court acted illegally in passim the impugned decree holding that the order of the Collector of Customs was ultra vires and without jurisdiction. Bangladesh and another vs Banarashi Lal Sharaf and others 45 DLR 669.

Sections 9 & 115—The provisions of the Code of Civil Procedure are not applicable in the Chittagong Hill Tracts. Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 488.

Sections 9 & 115—Any aggrieved party against the decision of the Divisional Commissioner in civil matters can maintain an application under Article 102 of the Constitution and not a revision petition under section 115(1) CPC, Bangladesh Forest Industries Development Corporation and others vs Sheikh Abdul Jabbar 53 DLR 485.

Section 9 & Order VII rule 11(d)—In view of the case-law reported in 41 DLR 77, the general remedy of the suit under section 9 of the Code of Civil Procedure is barred by section 102 of the Waqfs Ordinance and clause (d) of rule 11 of Order VII CPC appears to be applicable in the matter. Shah Newaz (Md) & ors vs Shah Wali and another 54 DLR 375.

Section 9 and Order VII, rule II—The jurisdiction of the Civil Court to try all disputes of civil nature under section 9 of the Code cannot be taken away lightly—it can be so done only when it is specifically barred under any law. Hilly Housing Co-operative Society Ltd vs Akhtaruzzaman Chowdhury and ors 54 DLR 46.

Section 9 & Order VII rule 11(d)—The aggrieved member of the trade organisation must exhaust his remedies by way of reference to an Arbitration Tribunal before invoking the aid of the Civil Court. Shaikh Ansar Ali & others vs Alci Tofazzal Hossain and others 55 DLR 211.

Section 9—Parties to an arbitration agreement may abandon by agreement to refer their disputes to arbitration or be discharged from the performance of the contract. The arbitration agreement may also be superseded. Civil suit is therefore never ipso facto intended to be barred in view of existence of an arbitration, agreement. Civil Engineering Co vs Mahkota Technology SDN BHD (Civil) 57 DLR 734

 

Section 9—Mere designation of the plaintiff as Officer Grade 11 (Cash) is not sufficient to indi­cate that he was not a ‘worker’. It is the nature of his work knowing the extent of his authority which determines whether he is a worker or not. Even if it is accepted that he was employed in a supervisory capacity it will not bring him into the category of ‘employer’ unless his functions are mainly mana­gerial and administrative in nature. Uttara Bank Ltd, AVP vs Shahabuddin Khan (Civil) 59 DLR   166

Section 9—Civil Court under section 9 of the Code of Civil Procedure is competent to entertain a suit and can well investigate the propriety of the order or action complained of as in the present case. Civil Courts always can assume jurisdiction to consider the malafide action of the authority even if there is ouster section or clause of any law made for special purpose. Merely because negative decla­ration has been sought that can- be no ground to hold that the suit does not come within the ambit of section 42 of the Specific Relief Act. Chairman, Bangladesh Water Development Board vs Md Abdur Rahman (Civil) 61 DLR 42

  Section 9—Section 73 of the Act empowers the District Judge to entertain a suit relating to infringement of trade mark or otherwise relating to any right in a trade mark i.e. passing off action. A perusal of the plaint shows the plaint discloses statement of facts relating to infringement of trade mark Dominous Pizza’ along with an action of passing off. Dominoes Pizza as Domino’s Pizza Inc (Civil) 61 DLR 780

C.p.c-sec: 10

10. Stay of Suit: No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Bangladesh having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Bangladesh established or continued by the Government and having like jurisdiction, or before the Supreme Court.
Explanation.-The pendency of a suit in a foreign Court does not preclude the Court in Bangladesh from trying a suit founded on the same cause of action.

Rulings:

Section 10—An order for simultaneously hearing and disposal of two suits—should not be passed as a matter of course. Bangladesh Shilpa Bank vs Bangladesh Hotels Ltd 38 DLR (AD) 70.

Section 10—Meaning of the expression “matter in issue” If refers to the entire subject in controversy between the parties—All matters in issue in the two suits should be identical—Court cannot apply this section where there are some issues in common and other are different issues. Abdur Razzaque Dhali vs Ashrafun Nessa 37 DLR 271.

Section 10—The special proceedings under special law (PO No. 129 of 1972) shall proceed independently under the provisions of that special law irrespective of whether there is any other pending proceeding under any other ordinary law instituted earlier or later than the special proceeding—Section 10 CPC shall not be attracted to the two proceedings even though subject matter and parties may be the same. Ahmad Silk Mills Ltd vs Bangladesh Shilpa Bank 42 DLR 140.

Section 10—The House Rent Controller having dismissed the petitioner’s cases under section 19 of the Rent Control Ordinance the latter preferred Misc. Appeals before the District Judge against the dismissal and prayed for stay of the proceedings of SCC suits against him pending disposal of the appeals. It is held in such circumstance that the point at issue before the

House Rent Controller and the SCC Judge are distinct and different and, as such, there is no question of granting stay. Sheikh Mohd Salimullah vs Shafiqui Alani 43 DLR 113.

Section 10—The matter in issue in the previously instituted suit and in the subsequent one is the material consideration under section 10 CPC, not the relief sought for in the suits. Altaf Hossain vs Abbas Ali 45 DLR 374.

Section 10—The Court cannot apply this section when some issues are common and other issues are different. Mazharul Hague Quraishi vs Giridhari Rishi and others 51 DLR 149.

Section 10—As both the suits are over the selfsame subject-matter and both by the same parties and the suits were filed in two different courts, in all fairness the suits as well as the injunction matter should be heard by the same court. Khaleda Rahman & another vs Integrated Services Limited and ors 53 DLR 161

Section 10—Having regard to the facts the both the parties are litigating about the same suit land for a decree of declaration it is desirable that both the suits be tried analogously by the same Court. Nurujjaman and others (Md) vs Md Sajjad Ali and others 56 DLR 149 .

Section 10 & Order IX rule 9—A miscellaneous case under Order IX rule 9 of the Code is not a continuation of the suit for the pendency of which further proceedings of an execution case can be stayed. Nurul Islam (Md) and others vs Md Maniruddin Bepari and others 49 DLR 351.

Sections 10, 11 and 141 and Order 39, rule 1—The Family Court constituted under the Family Courts Ordinance (XVIII of 1985) cannot grant temporary injunction under Order XXXIX, rule 1 CPC in view of the bar of section 20 of the Family Courts Ordinance No. 18 of 1985. Maqbul Armed vs Szrfia Khatun 40 DLR 305.

Sections 10 & 151—Provision of section 10 of the Code is mandatory—But this provision will not take away the right conferred upon this court under section 151 of the Code on the facts and circumstances of a given case to secure the ends of justice. Messrs Ayat Ali Bhuiyan vs Janata Bank 40 DLR 56.

Sections 10 & 151—Analogous Trial The principle of consolidation of suits for trial implies that similarity of identity of the hatter in issue in different suits by the same party should be decided by the court once and for all. The object of consolidation is to avoid multiplicity of litigations between the same parties whenever the matter in issue is substantially or directly the same. The principle of consolidation in no way conflicts with the purpose of section 10 CPC, on the contrary. it preserves and promotes it, Rezaul Karim vs Jahanara Begum 44 DLR 508.

Section 10, Or. VII r.11 & Or. IX r.9 Fresh slit—Same cause of action—Since two suits were filed one after another upon the same cause of action, the later suit ought to have been stayed. The later suit having been brought before the dismissal of the Title Suit No. 210 of 1981 the bar of Order IX rule 9 has no manner of application in the present case. Hajee Abdul Latif vs Abdul Huq others 44 DLR 601.

Section 10—A Partition Suit is generally filed against the co-sharer and the issues to be decided in such a suit are mainly if a person is a co-sharer of a Khatian, the shares of the parties claiming saham, etc., whereas the issues in a SCC suit are whether relationship of landlord and tenant exists between the parties. The Court, below com- mitted an error of law in staving further proceeding of the SCC suit on the ground of a partition suit pending between the parties and others occasioning miscarriage of justice. Dr Ahmed Majid vs Abdul Latif @) Suruj Ali (Civil) 59 DLR 282

C.p.c-sec: 11

11. Res Judicata: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.-The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Rulings:

Section 11—Res judicata—whether mere showing that a matter directly and substantially in issue in either the suits or proceedings is enough to attract the operation of the principle of res judicata, ‘Nhen there is nothing on record to show that both the parties are litigating under the same title. Ayezuddin Sheikh vs Abdul Karim 42 DLR 154.

Section 11—The bar of res judicata is applicable to writ proceedings on the general principle that there should be an end to litigation. Dr Syed Alatiur Rob vs Bangladesh 42 DLR (AD) 126.

Section 11—A court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter at a subsequent stage of the proceeding. Md Emdaduddin Sheikh vs Atiqur Rahman 42 DLR 416.

Section 11—Bar of res judicata hits the issue of service of notice under section 5(1a) of Act No. 13 of 1948. Govt of Bangladesh vs Basharaull ah 40 DLR 554.

Section 11—If the adverse finding is actually the decision of the suit and forms a fundamental part of the decree then it will operate as res judicata, if made incidentally. Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.

Section 11—What is res judicata? An adverse finding in any judgment of a suit dismissed, particularly when it is a conclusive decision in the suit, can be challenged in higher forums. Decision in the Redemption suits was on the same issue as in subsequent suit. Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.

Section 11—It may be mentioned that a decision may be res judicata against codefendants as well if there was conflict between them as held by the Privy Council in Muimi Bibi vs Tirl oki Nath, 53 ILR PC 103 and Kishum Prasad vs Durga Prasad, AIR 1931 PC 281 on this analogy also the decision against Chadra Bala, in Ext B, will operate as res judicata. Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.

Section 11- Explanation IV—Res judicata Constructive res judicata—Two suits, the earlier suit was for declaration of title and the latter suit for declaration of title and recovery of possession the latter suit is hit by section n, Explanation V CPC. Hafijuddin Sarker and Lakjan Bewa and others vs Bangladesh and ors 42 DLR (AD) 57.

Section 11—Principle of res judicata is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same question. Shomsher Ali vs Bangladesh 45 DLR 405.

Section 11—Decision on preliminary issue—Question of res judicata—In the instant case the previous proceeding was disposed of on a preliminary issue and no decision on other issues relating to status of co-sharer of the opposite party pre-emptor was given. Where an issue is raised but not decided it does not operate as res judicata Refazuddin Mondal vs Abdul Razul Haque @ Rezaul Karim & ors. 43 DLR 644.

Section 11—A question decided in a writ petition disposed of on merit cannot be reagitated in a subsequent suit between the same parties on the principle of res judicata. Chairman, Rajdhani Unnayan Kartipakhya and others vs Abul Hossain & others 50 DLR 249.

Section 11—The Bankruptcy suits are not barred by the principles of res judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits. Shamshad Asif vs Additional District Judge and others 52 DLR 138.

Section 11—The parties and the subject-matter in both the earlier and later suit are the same and the matter in issue as to the loss sustained by the plaintiff due to the reasons stated in the written statement of the earlier suit and plaint of the subsequent suit are materially and substantially the same These issues were raised in the earlier suit and by necessary implication was rejected in the earlier suit and as such the suit is hit by res judicata. Bangladesh Krishi Bank and others vs Al-Haj Md Nurul Islam & another 52 DLR 434.

Section 11—If an issue was finally decided on merit in an earlier suit or even in a writ petition by the High Court Division, the same issue shall operate as res judicata in view of the provision of section 11 of the Code, in a subsequently filed suit on the same issue. Shafi A Choudhuty vs Pubali Bank Ltd and others 54 DLR 310.

Section 11—For application of the doctrine of constructive res judicata the conditions amongst others, ‘the matter must be directly and substantially in issue’ and ‘has been heard and finally decided’ appear to be sine qua non. Eastern Bank Ltd and another vs Sufia Re-Rolling-ills and Steel Ltd and others 56 DLR 530.

Section 11—When an issue is raised and decided by the trial Court but in appeal neither affirmed nor reversed, that cannot be said to be finally decided and the decision of the trial Court would not act as res judicata. Eastern Bank Ltd and another vs Sufia Re-Rolling Mills and Steel Ltd and others 56 DLR 530.

Section 11—In order to bring subsequent suit within the mischief of section 11, first anc. foremost requirement is that the Court in which former suit was pending and/or decided must be competent to try subsequent suit, must be of concurrent jurisdiction both in respect of pecuniary jurisdiction and subject. Al Baraka Bank Bangladesh Ltd vs Rina Alam and another 56 DLR 588.

Sections 11,151 & Order VII rule II—It is well settled that where a plaint cannot be rejecte! under Order VII, rule 11 Code of Civil Procedure the court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151 of the Code of Civil Procedure. Abdul Jalil and others vs Islamic Bask Bangladesh Ltd and others 53 DLR (AD) 12

Sections 11,151 & Order VII rule II— As the ultimate result of the suit is as clear as day light Such a suit should be burled at its inception so that no further time is consumed in a fruitless litigation. Abdul Jalil and others vs Islamic Bank Bangladesh Ltd and others 53 DLR (AD) 12

Section 11, Orders VII rule 11 & IX rule 13–when miscellaneous case was filed alleging suppression and non-service of summons and disposed of accordingly, the question of falsity of claim in the suit was not a matter in issue and as such the same did not come up for consideration. Rejection of plaint on the ground ofres,jt{dicata in this position is erroneous. Dsiar Rahman vs Dharus Sunnah Islamia Madrasha 52 DLR 93,

Section 11 & Order VII rule 11—An issue of res juclicata cannot be resolved in disposing of a petition under clause (d) of rule 11 of Order VII of the Code, because in rejecting a plaint under the said provision, the Court cannot travel beyond the four corners of the plaint. Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.

Section 11 & Order VII rule 11—Ordinarily, a plaint should not be rejected under Order VII rule 11 of the Code on the ground of res udicata unless it is so palpably clear and obvious from a meaningful reading of the plaint that no further evidence is required. Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.

Section 11 & Order VII rule 11(d)—Res judicata—in the instant case where the plaintiff does not dispute the determination of her share as is the preliminary decree but disputes, on the .round of fraud, the actual allocation of share in the final decree drawn in earlier suit, the evocation of the rule of finality is beside the point. Nannu Miah vs Mosammat Peer Banu Bibi 43 DLR 526

Section 11—Res judicata—The issue of the present suit was not directly or substantially an issue in the previous suit so as to render the present suit barred by the principle of res judicata. Oriental Bank Ltd vs Rina Alam (Civil)57 DLR (AD) 51

Section 11—Res judicata—The principle of res judicata is nowhere mentioned in the Constitution. This principle as found in the Civil Procedure Code is also applicable to a writ petition involving dispute of civil nature—The principle should not however be applied in a writ matter in terms of the Code but in substance. M Saleem Ullah Advocate, Supreme Court. vs Bangladesh (Spl. Original) 57 DLR 171

Section 11—The courts below illegally relied on the principle of res judicata since the instant suit is a Civil Suit but the appeal pending in the Bhumi Appeal Board is not a Civil Suit. Golam Hossain Sikder (Md) vs Deputy Commissioner (Civil) 57 DLR 598

Section 11—Res judicata—It appears that the legality of either the Martial Law Proclamations or that of the Fifth Amendment was not finally decided. in the Order summarily rejecting the Writ Petition No, 802 of 1994, Such summary rejection does not debar challenging of those provisions in a subsequently filed writ petition, on the principle of res judicata, since no such issue had been raised therein or heard and finally decided by the said Court. The sine qua non for application of the principle of res judicata is the finality of a decision in an earlier action. Since no rule was issued in the Writ Petition No. 802 of 1994, the summary order passed in the said writ petition in the absence of the respondents therein, do not operate as res judicata in the present writ petition. Italian Marble Works Ltd vs Bangladesh (Spl. Original)62 DLR 70

Section 11 read with Order VII, rule I1— where evidence is required to establish the plea of res judicata rejection of plaint under Order VII Rule 11 of the Code on the ground of res judicata cannot be approved. Abdul Jalil vs Islami Bark Bangla­desh .Ltd (Civil) 64 DLR (AD) 107

C.p.c-sec: 12 – 15

12. Bar to further suit: Where a plantiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

Rulings:

Section 12—It is an admitted legal position that there is no limitation for filing a suit for partition and unless there is a total ouster of the right of a co-sharer from the ejmali property he shad be deemed to be in ejmali possession of the properties sought to be partitioned, if not partitioned earlier by metes and bounds. Narmuj Sikder vs Ayub Ali Sikder (Civil) 61 DLR 429

15. Court in which suits to be instituted: Every suit shall be instituted in the Court of the lowest grade competent to try it.

Rulings:

Section 15—Suit under Admiralty jurisdic-tion when not maintainable—Since the plaintiff is neither the owner nor consignee nor assignee of any Bill of Lading of any goods and since no damage was done to any goods of the plaintiff on board by the defendant, the plaintiff-insurer has no locus standi to invoke the jurisdiction of the Admiralty Court under section 6 of the Admiralty Court Act. The plaint be returned to the plaintiff with liberty to file it in appropriate court if not otherwise barred. Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43 DLR 548.

C.p.c-sec: 16

Sections 16(d) and 17—Section 16(d) is a general provision involving determination of any right to or interest in immovable property Section 17 is in the nature of a proviso to section 16. Abdul Gafur Sikder vs Shaf a Khatun 41 DLR 500.

Sections 16(d) and 17—For the application of section 16(d) the suit must be expressly for the purpose of determining the rights in immovable property.

So far as sections 16 & 17 of the CPC are concerned Krishan, J states as follows:

“It is contended that section 16, cl (d), Civil Procedure Code applies to the case and gives jurisdiction to the Godavari Court as some of the immovable included in the will are within that Court’s jurisdiction and though the Kistna Court has also jurisdiction. Abdul Gafur Sikder vs Alst Shaf a Khatun 41 DLR 500.

Sections 16(d), 94, 151 & Or. XXXVIII r. I—Warrant to arrest the defendant—As As the suit is for determination of right to immovable property, the Subordinate Judge had no jurisdiction to pass the order of arrest of the defendant nor such an order could be passed in exercise of the Court’s inherent jurisdiction.Mosharrqf Hossain Mia vs Mosammat Hasina Begum 43 DLR 254.

C.p.c- sec: 20

Section 20 and Order VII, rule 10—In choosing the forum for filing a suit cause of action is a factor though the defendant may not be a resident or may not be carrying on business having head office under jurisdiction of the court. In the suit in question it has been specifically urged that part of the cause of action arose at Dhaka as the contract out of which the claim was made was entered into and the claim was repudiated at Dhaka and as such the Civil Court at Dhaka has jurisdiction to try this suit. National Bulk Carriers vs Bangladesh Agricultural Development Corporation 42 DLR 530.
Section 20 & Order 2(2)—Cause of action may be defined as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right for the judgment of the Court. Amir Hossain Khairati vs Abdul Aziz Bepari and others 47 DLR (AD) 106.
Section 20 & Order VII rule 10—Jurisdiction to entertain suit—A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch office the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit. Kh Alahatabuddin Ahmed vs Matin Tea & Trading Company 46 DLR (AD) 92.
Section 20(c) & Order VII rule 11— Jurisdiction—When the Court rejects or refuses to reject a plaint it does so in exercise of the Jurisdiction vested in it. Even where clause (d) of Order VII rule 11 of the Code is invoked the court is entitled to examine whether the suit is barred by law. Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242.
Section 20(c) & Order VII rule 11—In an application for rejection of the plaint on the around of non-disclosure of cause of action the court need not dissect the plaintiffs case part by part, if a part of the cause of action arises within its jurisdiction. Guiness Peat (Trading) Ltd vs Faziur Rahman 44 DLR (AD) 242.

C.p.c-sec: 24

24. General power of transfer and withdrawal: (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court Division or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

Rulings:

Section 24—The High Court empowered to transfer appeal to it under section 24 of the Code. MA Hakim vs Bholanath Sell 40 DLR 413.

Section 24—District Judge as referred to in section 29(4) has ample authority to transfer an appeal pending before him preferred from the decision of Election Commissioner.
Expression “District Judge”—Meaning of—Provision of General Clauses Act—District Judge has unfettered power to transfer an appeal preferred to him from a decision of the Election Tribunal. Md Zulfikar vs Abu Kai am Chowdhury 42 DLR 21.

Section 24—In transferring a case from one Court to another the convenience of transfer which is to be taken into consideration by the Court is the convenience of both the parities. Tambia Khatun vs Abdul Raiff Sowciagar 46 DLR 521.

Section 24—Power of the District Cow under this section is somewhat of administrative nature and discretionary. In suitable cases the District Judge can even suo motu exercise the power in the interest of justice. In that view there is no illegality in the order of transfer of the suit, particularly when both the Courts are situated within the same premises. Bijoy Kumar Basak vs Narendra bath Datta 43 DLR 68.

Section 24—Though the schedule of plaint included some lands which have not fallen within the territorial jurisdiction of the court, the Court does not suffer from lack of jurisdiction in view of the fact that the suit was transferred to it by a competent court. Zahir Shekh vs Aid Yakub Ali 43 DLR 168.

Section 24—The utterance of any party outside the Court cannot-be a sufficient ground for transferring a suit. Anwarul Huq (Md) and others vs Md Bappi Gazi and others 47 DLR 530.

Section 24—Where an application for transfer is moved before a court the court is to hear the application after issuance of notice on the other side but where the Court suo motu passes an order under section 24 CPC no notice is required to be given to other parties. when the Court without issuing notice to other parties passed an order, the omission to hear the other side is contrary to section 24 CPC and amounts to be some mistake apparent on the face of the record. Mathura Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR 190.

Section 24—Section 24 CPC does not refer to a Judge but to the Court in the matter of review. A4athura Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR 190.

Section 24—The court below has correctly rejected the application under section 24 of the Code of Civil Procedure since the case pending in the Artha Rin Adalat cannot be heard analogously with any other case filed in any other normal Court created by the Civil Courts Act. Ripon Packaging and Accessories Ltd vs Eastern Bank Ltd and another 54 DLR 31.

Sections 24 and 115—General power of transfer and withdrawal Notice to be given to the parties before making the transfer order—Learned District Judge committed an error of law in making the order cf transfer without serving notice.
Section 115 is a discretionary jurisdiction of the Court The present petitioner has not suffered any hardship or prejudice by a simple order of withdrawal of the appeal from the Court of the 5th Additional District Judge to the Court of the District Judge. Dhaka No interference is called for. Maroon Malik (Md) vs National Bank Ltd 42 DLR 283.

Section 24(1)—District Judge derives power of transfer or withdrawal of a case under section 24. Md Zulfikar vs Abul Kalam Chowdhury 42 DLR 21.

Section 24(1)(b)—The power conferred on the High Court Division under section 24(i) (1)(b) of the Code of Civil Procedure regarding the withdrawal and transfer of case is an unfettered one. MA Hakim vs Bholanath Sen 40 DLR 413.

Section 24(1)(b)(i)—There cannot be any assumption that a District Judge who is a party to a suit will receive automatic support and sympathy of his peers while trying a suit to which he is a party. To give way to such assumption will be a ruinous invitation to a floodgate which we have no intention to open. As yet the petitioner has not given an hard evidence of the trial Court’s fear or favour of and for the District Judge concerned. The High Court Division rightly did not encourage a transfer on a mere apprehension. Shahida Khatun vs Abdul Malek Howlader and others 50 DLR (AD) 147.

Section 24(2)—Sub-section (2) of section 24 speaks that for the purpose of section 24 Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Judge. Section 22 of the Civil Courts Act, 1887 also provides that a District Judge may transfer to any Subordinate Judge under his administrative control any appeal pending before hem from the decrees or orders of Munsif. Muhammad Zukar vs Abul Kalam Chowdhury 42 DLR 21.

Section 24—The burden of establishing sufficient grounds for transfer of a case lies heavily upon the applicant. The approach of the Court in deciding about transfer should be pragmatic and not theoretical. The totality of facts and circumstances should be considered. Nnrul Hague Sarkar Janata Bank and others (Civil) 58 DLR 589

Section 24—Transfer of appeal-It appears that all the grounds of withdrawing of the appeal frown the Court of District Judge have been mitigated and there is no apprehension of injustice if the appeal is withdrawn and transferred to this Court, rather such transfer will do justice to the parties. Saraj Kumar Sarker vs Manoj Kumar Sarker (Civil) 62 DLR 25

 Section 24—Section 24 of the Code of Civil Procedure has conferred on the District Judge .a very wide, discretion in the matter of withdrawal and transfer of suits, appeal and other proceedings. This discretion, however, is judicial discretion and therefore, it must be exercised for substantial reasons based on special facts of individual cases. Nasiruddin vs Md Mozammel Hossain (Civil)63 DLR 303

Sections 24 & 115—A District Judge by exercising power- under section 24 CPC, is not empowered by law to transfer any appeal pending before Special District Judge to any other Court sub­ordinate to it. Abdus Sattar vs Md Ali Nossain Prodhan (Civil) 63 DLR  147

24A. Appearance of parties on transfer of suit, etc: (1) Where any suit is transferred under section 22, or any suit, appeal or other proceeding is transferred or withdrawn under sub-section (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.

(2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceedings is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located.]

Rulings:

 Section 24A(2)—As per section 24A(2) of the Code transfer Court is required to pass order of transfer. on a date fixed for the appearance of the parties, and _such Court shall communicate the order to such parties direct them to appear before the Court to which the proceeding is transferred. Rezia Sultan vs Md Haroon Malik (Civil)64 DLR 347

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